Relist (and Hold) watch

By John Elwood
on Oct 12, 2011 at 10:45 am

John Elwood reviews Tuesday’s relisted and held cases.

If you are one of the two people who read last week’s installment, you are already about ninety percent up to speed on this week’s relists and you can stop reading now. With a few exceptions, all of last week’s relists have been relisted once again.

The happiest exception (at least for Alex Blueford) is Blueford v. Arkansas, 10-1320, which presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense; the Court granted in that case. (And the Court now appears to be holding Harrison v. Gillespie, 11-168, for Blueford.) Also happy news for Acting Warden Brenda Cash in Cash v. Maxwell, 10-1548, the petition alleging the Ninth Circuit gave insufficient deference to the state court under the Antiterrorism and Effective Death Penalty Act (“AEDPA”); the Court not only relisted again, but it also called for the record, suggesting that this case is now a more serious candidate for the state’s requested relief of summary reversal.

Bad news came for petitioners in two capital cases, Rocha v. Thaler, 10-9659, and Adams v. Thaler, 10-10881, both raising questions involving alleged adequate and independent state grounds to support a state-court judgment (and thus to preclude federal habeas relief); the Court denied without comment in both. And bad news for Arizona in Ryan v. Doody, 11-175, the AEDPA case involving a man convicted of killing nine people at a Buddhist temple, in which the state sought summary reversal of the Ninth Circuit; denial of cert. there as well, but Justice Alito noted that he would have granted the petition.

The judgment in Johnson v. Obama, 10-10652, which involved questions about the propriety of a judge presiding over a case in which she was a named defendant, was summarily affirmed: because eight of the nine Justices were named defendants in the case, the order list noted, “the Court lacks a quorum,” and Justice Kagan, “the only qualified Justice,” was “of the opinion that the case cannot be heard and determined at the next term of the Court.” Thus, the judgment was summarily affirmed under 28 U.S.C. § 2109.

There was one new relist. Elgin v. Department of the Treasury, 11-45, presents the question whether the Civil Service Reform Act impliedly precludes federal district courts from having jurisdiction over constitutional claims for equitable relief brought by federal employees. The government seems to acknowledge that the Third and D.C. Circuits take a different approach than the majority of circuits, but it says that this isn’t an appropriate vehicle for resolving the alleged conflict.

The Court appears to be holding Derry v. Florida, 10-1488, which involves an alleged violation of Brady v. Maryland, 373 U.S. 73 (1963). The Court may be holding it for Smith v. Cain, 10-8145. And the Court also appears to be holding Rosa v. United States, 11-5141, which involves whether the good-faith exception to the Fourth Amendment exclusionary rule applies when a search warrant fails to describe with particularity the items to be searched and seized but such information is contained in the warrant affidavit and application; the Court may be holding it for Messerschmidt v. Millender, 10-704.

Finally, I neglected to note last week that the Court relisted yet again in the “shaken baby” case, Cavazos v. Smith, 10-1115, whose frequent relists last Term are noted here, here, here, here, here, here, here, and here. It is yet another case in which a state argues that the Ninth Circuit exceeded its authority by granting relief under the AEDPA. The Court requested the record from the Ninth Circuit and from the district court back in May. It is very curious that the Court is still hanging on to the case.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

I’ll be in trial in Madison, Wisconsin, for the next two weeks, so the edition after the October 14 conference will likely be delayed.

Elgin v. Department of the Treasury (relisted after the 10/7 Conference)

Docket: 11-45

Issue(s): Whether the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., precludes petitioners from seeking equitable relief in district court based on allegations that they were unconstitutionally terminated from federal employment.